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Five Things Wrong With The Russell McVeagh Report and the Law Society Complaint Process

This post refers to sexual harassment and bullying. Need help? In New Zealand, you can call Lifeline on 0800 543 354, Youthline on 0800 37 66 33 or find out about other crisis services here. Rape Prevention Education has a list of sexual assault support centers on their website. The Human Rights Commission provides confidential advice and support, and you can complain about sexual harassment to them.

Similar events that occurred at Russell McVeagh have also occurred at other New Zealand law firms without attracting media attention, and there are several recommendations in the Russell McVeagh report and aspects of the Law Society’s complaint processes that could be improved.

Other New Zealand law firms

The series of alleged events disclosed in the Russell McVeagh report are similar to those that have occurred in multiple law firms around New Zealand.

A senior lawyer, often a partner, sexually harasses a junior employee. Often the sexual harassment happens outside of the office, but in a work-related context at a bar, hotel, or staff member’s home. It’s unlikely sexual harassment is the only problematic conduct occurring at the firm, or that this is the first incident of sexual harassment the senior lawyer has been involved in.

At this stage, often prompt and effective action could be taken by the law firm to resolve the issue to the junior employee’s satisfaction, however it rarely occurs. Although the firm often has human resources staff, they are not equipped to deal with complaints of sexual harassment.

After some time, the offending lawyer, who is often respected in the profession, is quietly exited from the firm, often retaining their practising certificate and going on to practise as a barrister sole. A formal investigation is rarely conducted by the firm. In any case the firm is unlikely to have the resources, and it’s unlikely to be appropriate, for the firm to conduct the investigation itself. If a public statement is made by the firm it doesn’t mention that the lawyer exited “under a cloud”.

By this time the junior employee has often resigned from the firm. If they have taken action under employment law and signed a settlement agreement they are often bound by a confidentiality clause.

The report’s recommendations

Dame Margaret Bazley’s report is overall quite good, but the recommendations fall short in at least two areas.

There is no recommendation regarding each member of the partnership’s ethical and legal obligation to report suspected misconduct to the Law Society. Even if the lawyer allegations have been made against leaves the firm, if a complaint or disclosure to the Law Society is not made there is no barrier to the lawyer obtaining another legal job without having to address their conduct.

It’s time for an independent review of the Law Society to address issues with the complaints process, for example:

The Law Society doesn’t accept complaints about conduct without the complainant knowing the names of the practitioner allegations have been made against, even if the allegations themselves are public. Even though the complaint regulations state that the Law Society should provide reasonable assistance, the Law Society’s position is that this does not extend to a preliminary investigation to request information, for example the lawyer’s name, from the law firm involved.

Complaints, when they are made, are shrouded by intense secrecy. Other potential complainants have no indication that a person’s conduct is being investigated, even though being part of a group of complainants may make them more comfortable to come forward. The Russell McVeagh report highlighted this when the group of summer clerks “told each other about their experiences with the same partner” and felt comfortable making a disclosure as a group.

The Law Society has a conflict of interest in deciding whether to publish details about upheld complaints.